Phoolchand vs Gopal Lal on 10 March, 1967

Sohan Lal died on May 13, 1947 and soon after his widow, Smt. Gulab Bai also died on November 22, 1947. Phoolchand was son of the Sohan Lal and Gulab Bai, Gopal Lal Brother of Phoolchand, Rajmal minor adopted son fo the mother of the Gokalchad (deceased) who was another brother of the Phoolchand. Sohan Lal was an old man of about 70 years when the will was executed and we should require strict proof of the due execution of the will. There are several circumstances which in our opinion clearly show that the will was duly executed by Sohan Lal in favour of Gopal Lal. Firstly, Phool Chand was a thorn in the side of the father and had dragged him into litigation. The will says that Phool Chand separated from the father long before and picked up quarrels with him. It further says that Phool Chand had no regard for his duty as a son and had been behaving with the testator in a most improper and shameful way. It goes on to say that the testator was fed up with the improper behaviour of Phool Chand. The testator then says in the will that contrary to it, Gopal Lal lived with him, served him and was obedient to him and he was impressed with the services of Gopal Lal. He wanted his property to go to Gopal Lal and was making the will in order that Gopal Lal may not be put to any trouble after his death and might live comfortably.

The will appears to be a very natural will in the circumstances. Sohan Lal obviously did not provide for his wife for she had been allotted one-fifth share in the -property already by the trial court's preliminary decree. As for Rajmal minor, it appears that he was the natural son of Phool Chand and there was dispute whether he had been adopted by Gokalchand's widow, though the dispute was eventually settled in favour of Rajmal minor by the court. In these circumstances we would not expect Sohan Lal to make any provision for Rajmal minor either who had got one-fifth share on the basis of adoption. Disputes seem to have arisen about the shares allotted to these two persons. It appears that Gopal Lal claimed that his father Sohan Lal had made a will in his favour on June 2, 1940, according to which he bequeathed all his property to Gopal Lal. Phool Chand challenged the genuineness of the will. As to the share of Smt. Gulab Bai Phool Chand claimed that she had executed a sale deed dated October 19, 1947 and registered on January 10, 1948 by which she sold all her share in movable and immovable properties which came to her by the decree of August 1, 1942 to Phool Chand. Gopal Lal, contended that Smt. Gulab Bai was not entitled to sell the share which she got in the ancestral property as she was a limited owner and therefore her share must be held to have devolved on Gopal Lal, Phool Chand and Rajmal. These disputes were brought before the court soon after the deaths of Sohan Lal and Smt. Gulab Bai, but nothing seems to have been done for many years. But Gopal Lal in whose favour the will was made had taken a prominent part in its execution. Phool Chand filed a suit in 1937 for partition of his one-fifth share in certain properties mentioned in the schedule to the plaint.

On July 12, 1961the trial court decided the disputes with respect to the shares of Sohan Lal and Smt. Gulab Bai. It also upheld, the sale deed in favour of Phool Chand appellant. In consequence the trial court redistributed the shares indicated in the preliminary decree of August 1, 1942. By this re-distribution, the share of Phool Chand was increased from one-fifth to one- half; the share of Gopal Lal was increased from one-fifth to one-fourth, and the share of Rajmal was increased from one- fifth to one-fourth. The trial court did not prepare another formal 'preliminary decree on the basis of this re-distribution of shares. It came to the conclusion that the will had not been proved.

The Judgment of the Court was delivered by Wanchoo, J. This is an appeal on a certificate granted by the Rajasthan High Court. That suit was fought right upto the Mahkma Khas (Privy Council) of the former State of Jaipur and a preliminary decree for partition was passed specifying the shares of the appellant and the four defendants mentioned above on August 1, 1942. The appeal fails and is hereby dismissed with costs.